O'DONNELL v. Bassler

Davidson, J., delivered the opinion of the Court. In 1969 one of the respondents, Basslers Incorporated (owner), purchased approximately 504 acres of land located ⁵⁰³ in Howard County zoned R-40 (Residential, one family detached, one acre minimum lot size), a portion of which was used as a private airfield by approximately 15 private aircraft. On 6 September 1976, the owner applied to the Board of Appeals of Howard County (Board) under § 19.05 of the 1961 Howard County Zoning Regulations (1961 Zoning Regulations) 1 for a special exception use permit for a commercial aircraft landing field capable of accommodating 60 private aircraft. As required by § 2.211 of the Howard County Code, the application included, among other things, a description of the intended use of the subject property and a site development plan showing the proposed development of that property.

Before a hearing was held on the application, the Office of Planning and Zoning and the Planning Board recommended approval of the requested special exception use permit subject to certain specific conditions to be imposed by the Board. At the hearing the owner and several other witnesses testified in support of the application. Charles H. O’Donnell, Jr. and others (protestants) testified in opposition to the grant of the requested special exception use permit. In essence, they stated that the then existing use of the aircraft landing field by 15 aircraft created sufficient noise and disturbance to constitute a nuisance that interfered substantially with the use and enjoyment of their property.

On 31 December 1976, the Board filed a decision and order that stated in pertinent part: ⁵⁰⁴ "1. That a limited commercial aircraft landing field and airport is a use that is essential and desirable to the public convenience and general welfare of the people in Howard County. 5. That the petitioner’s request, if granted with reasonable conditions, will not interfere with the peaceful enjoyment of people in their homes.” (Emphasis added.) The Board then granted the requested special exception use permit subject to 13 specified conditions. Eight of the conditions imposed were identical to those contained in the owner’s application and site development plan. 2 The remaining five conditions imposed were additional to those contained in the owner’s application and site development ⁵⁰⁵ plan (additional conditions). 3 These additional conditions required, among other things, that the number of airplanes utilizing the proposed facility be reduced from 60 to 15, that the number of flights be limited to 15 flights per day, and that the proposed facility’s use be limited to aircraft stored at the facility.

Thereafter, the owner made the changes necessary to conform the existing aircraft landing field to the site development plan. These changes included, among other things, "twisting the runway slightly to meet [al 500 foot setback requirement . .. shavfing] a few humps olf the cornfield and planning] grass for the new parking area.” ⁵⁰⁶ On 9 February 1977, the protestants appealed to the Circuit Court for Howard County. The owners cross appealed on the ground that the Board had no authority to impose the additional conditions. On 3 October 1977, the 1961 Zoning Regulations were amended (1977 Zoning Regulations).

As a result, commercial aircraft landing fields and airports were abolished as a special exception use. On 10 April 1978, at oral argument, the Circuit Court was advised of the existence of the 1977 Zoning Regulations. In an opinion and order filed on 22 March 1979, the Circuit Court expressly noted that the 1961 Zoning Regulations "are the ones applicable in this case.” It held, among other things, that the Board did not have the authority to impose the additional conditions. The Circuit Court rejected the Board’s contention that, under the circumstances, the case should be remanded in order to permit the Board to decide whether the special exception use permit should be granted without the additional conditions.

Instead, the Circuit Court determined that the grant of the requested special exception use permit "even without the conditions, would be supported by the evidence before the Board.” Accordingly, the Circuit Court modified the Board’s order by eliminating the additional conditions and affirmed the Board’s order as modified. The protestants appealed to the Court of Special Appeals. There they contended that the Court of Special Appeals should apply the 1977 Zoning Regulations in effect at the time of the appeal rather than the 1961 Zoning Regulations in effect at the time the special exception use permit was granted. In addition, they contended that the Circuit Court had erred in modifying and affirming the Board’s order granting the special exception use permit rather than remanding the case to the Board.

The Court of Special Appeals applied the 1977 Zoning Regulations without determining whether the owners had obtained a vested right in the granted special exception use permit. That Court pointed out that § 120A of the 1977 Zoning Regulations provided that lawfully existing uses ⁵⁰⁷ could be continued 4 and concluded that because the special exception use permit "was validly granted under the 1961 Regulations,” it could "continue despite the 1977 amendment” that abolished commercial aircraft landing fields as a special exception use. In addition, relying upon § 121D of the 1977 Zoning Regulations, 5 the Court of Special Appeals determined that the Circuit Court did not err in modifying and affirming the Board’s order rather than remanding the case to the Board. In an unreported opinion, that Court affirmed the judgment of the Circuit Court.

O’Donnell v. Bassler, No. 476, September Term, 1979, filed 8 January 1980. The protestants filed a petition for a writ of certiorari that we granted. 6 We shall reverse the judgment of the Court of Special Appeals. The central question presented is whether the law in effect at the time that a special exception use permit was granted or the law in effect at the time of the appeal is applicable. More particularly, the question presented is whether the law to be applied is the 1961 Zoning Regulations that permitted a commercial aircraft landing field at the time the special exception use permit was granted or the 1977 Zoning ⁵⁰⁸ Regulations, in effect at the time of the appeal, that had abolished such a use.

An appellate court must apply the law in effect at the time a case is decided, provided that its application does not affect intervening vested rights. County Council for Prince George’s County v. Carl M. Freeman Assocs., Inc., 281 Md. 70, 76 , 376 A.2d 860, 863-64 (1977); Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 127 , 291 A.2d 672, 677 (1972). Generally, in order to obtain a vested right in an existing zoning use that will be protected against a subsequent change in a zoning ordinance prohibiting that use, the owner must initially obtain a valid permit. Additionally, in reliance upon the valid permit, the owner must make a substantial beginning in construction and in committing the land to the permitted use before the change in the zoning ordinance has occurred.

Steuart Petroleum Co. v. Board of County Comm’rs of St. Mary’s County, 276 Md. 435, 442-44 , 347 A.2d 854, 859-60 (1975), County Council for Montgomery County v. District Land Corp., 274 Md. 691, 707 , 337 A.2d 712, 721 (1975). The issuance of a permit that is invalidated upon direct judicial review, however, creates no vested right in an owner. See City of Hagerstown v. Long Meadow Shopping Center, 264 Md. 481, 494-96 , 287 A.2d 242, 248-50 (1972); Ross v. Montgomery County, 252 Md. 497, 504-07 , 250 A.2d 635, 639-41 (1969); Town of Berwyn Heights v. Rogers, 228 Md. 271, 280 , 179 A.2d 712, 716 (1962). Thus, an owner who obtains an invalid permit "would derive no benefit, and whatever he might do in pursuance of this permission would be at his own risk and loss.. . .” Lipsitz v. Parr, 164 Md. 222, 227-28 , 164 A. 743, 745-46 (1933).

More particularly, an owner who obtains a permit and begins construction before the expiration of an appeal period proceeds at his own risk. City of Hagerstown, 264 Md. at 496 , 287 A.2d at 250 ; Lipsitz, 164 Md. at 225-28 , 164 A. at 745-46 . In order to determine whether the 1961 Zoning Regulations or the 1977 Zoning Regulations apply, we must initially decide whether the special exception use permit for ⁵⁰⁹ the commercial aircraft landing field was valid. The record shows that the Board granted the owner a special exception use permit for a commercial aircraft landing field subject to eight conditions identical to those contained in its application and site development plan and five that were additional to those that it submitted.

The Circuit Court held, and the parties concede, that the Board had no authority to impose the additional conditions. In view of the parties’ concession, we shall assume, without deciding, that the special exception use permit granted by the Board was invalid. The Circuit Court, however, directed the elimination of the invalid additional conditions and affirmed the Board’s order granting the special exception use permit as modified. Under these circumstances, we must next decide whether the Board’s order granting the special exception, as modified by the Circuit Court, constituted a valid special exception use permit.

It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. Courtney v. Board of Trustees of the Md. State Retirement Systems, 285 Md. 356, 362 , 402 A.2d 885, 889 (1979); Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394-96 , 396 A.2d 1080, 1089 (1979); Jobar Corp. v. Rodgers Forge Community Ass’n, Inc., 236 Md. 106, 120 , 202 A.2d 612, 620 (1964); Bernstein v. Real Estate Comm’n, 221 Md. 221, 230 , 156 A.2d 657, 661-62 (1959), appeal dismissed, 363 U.S. 419 , 80 S. Ct. 1257 (1960). This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order. Under such circumstances, the court should remand the matter to the administrative agency without modification, South Prairie Constr.

Co. v. Local No. 627, IUOE, 425 U.S. 800, 805-06 , 96 S. Ct. 1842, 1844-45 (1976); NLRB v. Food Employees Local 347, 417 U.S. 1, 9-11 , 94 S. ⁵¹⁰ Ct. 2074, 2079-80 (1974); FPC v. Idaho Power Co., 344 U.S. 17, 19-21 , 73 S. Ct. 85, 87 (1952); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145 , 60 S. Ct. 437, 442 (1940); Pistorio v. Zoning Bd. of Howard County, 268 Md. 558, 567-70 , 302 A.2d 614, 619 (1973); Montgomery v. Board of County Comm’rs for Prince George’s County, 256 Md. 597, 604 , 261 A.2d 447, 450-51 (1970); Board of County Comm’rs for Prince George’s County v. Brown, 253 Md. 632, 639-42 , 253 A.2d 883, 888-89 (1969); Board of County Comm’rs for Prince George’s County v. Ziegler, 244 Md. 224, 228-29 , 223 A.2d 255, 257-58 (1966); Miller v. Kiwanis Club of Loch Raven, Inc., 29 Md. App. 285, 298-99 , 347 A.2d 572, 580 (1975). See FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 , 793 n.15, 98 S. Ct. 2096 , 2111 n.15 (1978); Texas & Pacific Ry. v. ICC, 162 U.S. 197, 213 , 16 S. Ct. 666, 682 (1896). 7 Of course, the court need not remand if the modification is so minor as to make remand inappropriate, Idaho Power Co., 344 U.S. at 20 , 73 S. Ct. at 87 ; Board of County Comm’rs for Prince George’s County v. Meltzer, 239 Md. 144, 156-57 , 210 A.2d 505, 512 (1965), or if remand is otherwise futile. Hooper v. Mayor of Gaithersburg, 270 Md. 628, 637 , 313 A.2d 491, 496 (1974); Chevy Chase Village v. Montgomery County Council, 258 Md. 27, 40, 44 , 264 A.2d 861, 867-68, 869-70 (1970); Williams v. Washington Metropolitan Area Transit Comm’n, 415 F.2d 922, 939-43 (D.C. Cir. 1968), cert. denied, 393 U.S. 1081 , 89 S. Ct. 860 (1969). Finally, if an ⁵¹¹ administrative function remains to be performed, a reviewing court may not modify the administrative agency’s action even when a statute provides that the court may "affirm, modify or set aside” because a court may not usurp administrative functions.

Food Employees Local 347 , 417, U.S. at 3, 94 S. Ct. at 2077 ; Idaho Power Co., 344 U.S. at 21 , 73 S. Ct. at 87 ; Pottsville Broadcasting Co., 309 U.S. at 144 , 60 S. Ct. at 442 ; Federal Radio Comm’n v. General Electric Co., 281 U.S. 464, 467 , 50 S. Ct. 389, 390 (1930). In Federal Power Commission v. Idaho Power Co., 344 U.S. 17 , 73 S. Ct. 85 (1952), a case involving facts strikingly similar to those in the instant case, the United States Supreme Court clearly articulated the principles stated above. There, a privately owned public utility applied to the Federal Power Commission (FPC) for a license to construct and operate a hydroelectric project. After the FPC granted the requested license subject to certain conditions, the private utility appealed.

The United States Court of Appeals for the District of Columbia Circuit held that the FPC had no authority to attach the conditions. It entered a judgment that the FPC’s order "be modified” by striking the conditions and that the order, as thus modified, be affirmed. The Supreme Court reversed, stating: "It is the Commission’s judgment on which Congress has placed its reliance for control of licenses. See